Dr Shezad Malik Law Firm has offices based in Fort Worth and Dallas and represents people who have suffered catastrophic and serious personal injuries including wrongful death, caused by the negligence or recklessness of others. We specialize in Personal Injury trial litigation and focus our energy and efforts on those we represent.

December 20, 2009

Miami Beach Wrongful Death Drowning Victim Gets $5M

The family of a New York jazz musician who drowned trying to save a rabbi’s wife in treacherous riptides off Miami Beach has won $5 million in damages in a decade-old case that had raised serious liability issues for seaside communities that don’t provide lifeguards at public beaches.

U.S. District Judge Gold ordered Delaware-based Monticello Insurance Co. to pay damages to the wife of Zachary Breaux. The insurance carrier had refused to pay, even though the family’s lawyer and the city of Miami Beach had negotiated a settlement.

Gold also ordered the insurance company to pay $750,000 in damages to the husband of a New York school secretary, Eugenie Poleyeff, whom Breaux tried to save during a midwinter vacation in 1997. The city also negotiated that settlement, but the insurer had refused to pay.

In 2003, The Miami Herald wrote about the drowning incidents and their implications for seaside municipalities. The cases rose to the Florida Supreme Court at mid-decade and ended up in federal court in Miami. In the interim, the state Legislature passed a law removing liability for seaside municipalities if they posted warning flags about dangerous swimming conditions or if someone drowned because of natural causes.

But the new law didn’t affect the legal battle stemming from a visit by tourists to Miami Beach in 1997. While on vacation, Eugenie Poleyeff went for a swim off 29th Street and Collins Avenue on Miami Beach. Moments later, she yelled for help, but her husband, Israel, didn’t hear her.

Zachary Breaux, an up-and-coming smooth-jazz guitarist, raced into the water while his wife and daughter searched desperately for a lifeguard.

“I saw Zachary reach her,” Frederica Breaux, a schoolteacher, told The Herald in 2003. “I thought he would bring her back in. . . . It was over in an instant.”
Both tourists drowned, pulled into deep waters by rugged riptides.

Frederica Breaux and Israel Poleyeff, a rabbi, sued Miami Beach, asserting that the city should have had lifeguards and riptide warnings at the public beach.

The crux of the lawsuits: Miami Beach provided parking, showers and concessions near the 29th Street beach to cater to the public, but didn’t station lifeguards, supply lifesaving equipment or put up riptide warnings.

State circuit and appellate courts didn’t allow the cases to go to trial, saying the city couldn’t be held responsible for ocean conditions. A city that does not regulate a particular beach area has “no common-law duty” to safeguard the public from ocean dangers, a Third District Court of Appeal panel ruled, 2-1, in 2002.

The state Supreme Court agreed to review that opinion because it ran contrary to decades of high-court rulings that Florida communities can be held liable.

In a landmark ruling in 2005, the state Supreme Court found that cities, like private landowners, have a responsibility to warn beachgoers of dangerous conditions that are known or should be known.

“The city at the time had created the appearance of a protected beach,” said attorney Howard Pomerantz, who represented the Breaux family. He noted that soon after the drownings, the city erected a lifeguard stand at that beach.

“All we were saying is they should have posted signs that this was not a protected beach,” he said in a statement.

After the ruling, Monticello, the city’s insurer, refused to defend Miami Beach. So city officials decided to negotiate a settlement with Breaux’s estate and the estate of Poleyeff, which was represented by attorney Andrew Yaffa of Grossman Roth.

After the 2007 settlements, the city and the families ended up on one side of the legal fight and the city’s insurer, Monticello, on the other.

“The city long ago realized that if this went to trial, a jury sympathetic to the Breaux family’s case could return a huge verdict,” Pomerantz said. “The city wanted to do the right thing and settle with the victims, but they became a victim themselves when Monticello abandoned them by denying both coverage and defense.”
City officials agreed. “We’re all pleased that we prevailed,” said Miami Beach City Attorney Jose Smith.

The judge ordered Monticello to pay not only the damages to the Breaux and Poleyeff families, but also to reimburse the city for its $200,000 obligation under the settlements. Gold also ordered the insurer to pay interest on the damages as well as attorneys’ fees and costs for the decade-long case.

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